This copy is for your personal non-commercial use only. To order presentation-ready copies of Toronto Star content for distribution to colleagues, clients or customers, or inquire about permissions/licensing, please go to: www.TorontoStarReprints.com

National security review tries to tackle needs of law enforcement in digital world

The Liberals have promised to repeal elements of the controversial Bill C-51.

Public Safety Minister Ralph Goodale said the government wants Canadians’ input on all kinds of changes to make to the country’s national security framework to “get it right.” (Justin Tang / THE CANADIAN PRESS file photo)

OTTAWA— The Liberal government is taking another crack at making it easier for police and spies to gain “lawful access” to telecom companies’ customers’ subscriber information, online activities, telephone conversations, and encrypted communications.

It comes deep into a sweeping discussion paper on how Canada should overhaul its national security laws.

The so-called “green paper,” released Thursday by Public Safety Minister Ralph Goodale, paints a picture of police and national security agencies stymied by technological advancements that terror suspects turn to their advantage, a Supreme Court of Canada decision that requires time-consuming unwieldy warrants for basic Internet subscriber information, and the failure of legislation to keep up with the bad guys.

The Liberal government is broaching the hot button topic more than four years after the Conservatives triggered an uproar when a senior cabinet minister — Vic Toews — accused opponents of siding with child pornographers if they didn’t support a bill to update state powers of electronic surveillance. Amid a storm of criticism and a backlash from privacy advocates, that bill was withdrawn.

This time, however, the Liberal government is making a detailed legal argument in favour of updating its powers in public and inviting Canadians to weigh in.

Article Continued Below

Goodale did not refer to the lawful access proposals in a news conference in Edmonton meant to highlight that the Liberals are keeping a promise to consult Canadians on changes to the Anti-Terrorism Act of 2015, also known as Bill C-51.

Goodale said the government wants Canadians’ input on all kinds of changes to make to the country’s national security framework to “get it right.”

In the chapter on lawful access, entitled “Investigative Capabilities in a Digital World,” the government lays out the case for change.

It says digital information is “sometimes more important than physical evidence or intelligence” in national security investigations, solving crimes and prosecuting offenders. It makes arguments for easing constraints on police, saying many foreign jurisdictions are ahead of Canada in allowing lawful access to digital communications, in many cases without prior judicial authorization.

It says Canada doesn’t impose a general legal requirement on communications service providers to build in interception capabilities — the ability to wiretap or eavesdrop — on their networks, while “many other countries do.” Nor does it legislate a requirement for companies to provide decrypted data or to retain data longer than they might want, in order to facilitate police ability to retrieve information in an investigation.

The paper is frank about possible impacts on charter rights, such as privacy or expectations of due process.

But it asks Canadians to answer the question: “Should the government update these tools to better support digital/online investigations? Is your expectation of privacy different in the digital world than in the physical world?”

The new push comes just weeks after the RCMP pointed out that it was faced with encryption hurdles as it tried to investigate Aaron Driver, the terror suspect shot and killed last month in Strathroy, Ont. Deputy commissioner Mike Cabana told reporters the Mounties knew Driver was communicating in a chat group with two prominent members of ISIS in May 2015 but “we were never able to establish the nature of the communication due to the fact that they were using an encrypted application.”

Last month, Canadian police chiefs passed a resolution calling for a legal measure to unlock digital evidence, saying criminals increasingly use encryption to hide illicit activities.

Lawful access is “a real thorny issue,” said University of Ottawa law professor Craig Forcese, a national security law expert, in an interview with the Star.

“For years I’ve been saying we’ve got to deal with it, and you can’t deal with it without investing people in a discussion, because the best-organized civil liberties organizations in Canada right now are privacy groups,” said Forcese.

“And if you go ahead unilaterally and start tabling stuff in Parliament, you’re going to have a replay of the disaster of the last decade in Parliament where nothing ever got passed, except the cyberbullying bill which didn’t address all the issues.”

In recent weeks police have flagged problems with other national security tools they have at hand. The Driver case also illustrated problems with peace bonds, court orders meant to curtail the activities and communications of terror suspects in cases where there isn’t enough information to press charges.

The discussion paper invites discussion on all such measures. The consultation phase will close by the end of December.

Rights groups like the Canadian Civil Liberties Association and the British Columbia Civil Liberties Association welcomed the consultations but said their concerns haven’t eased.

Micheal Vonn, policy director for the BCCLA, said in an interview, the government suddenly appears cool to dramatic changes, saying the green paper’s examples meant to prompt discussion “end up being something of an apology” for current” laws such as the no-fly list.

“We need serious evidence-based reform, not legislative tweaking. We are confident that this is what the government will be hearing from the Canadian public and experts in the course of these consultations."

Forcese agreed several of the hypothetical and “benign” scenarios in the paper effectively make arguments for the RCMP and CSIS side of the questions it poses. Forcese said the paper, though ambitious in scope, “sugar-coats” some of the powers the state already has “by understating their reach.”

It provides little new information about how the controversial powers granted to CSIS to disrupt threats under Bill C-51 actually work. It downplays the kinds of actions CSIS takes under its threat disruption powers, suggesting it might mean changing an online bomb-making recipe to foil a would-be terrorist.

Vonn said Canadians’ primary concerns when C-51 was introduced were “surveillance and secret police. It is essential that government understand that the new and essentially unaccountable “kinetic” powers of CSIS and the unprecedented surveillance . . . are deeply troubling to Canadians.”

Delivered dailyThe Morning Headlines Newsletter

The Toronto Star and thestar.com, each property of Toronto Star Newspapers Limited, One Yonge Street, 4th Floor, Toronto, ON, M5E 1E6. You can unsubscribe at any time. Please contact us or see our privacy policy for more information.

More from the Toronto Star & Partners

LOADING

Copyright owned or licensed by Toronto Star Newspapers Limited. All rights reserved. Republication or distribution of this content is expressly prohibited without the prior written consent of Toronto Star Newspapers Limited and/or its licensors. To order copies of Toronto Star articles, please go to: www.TorontoStarReprints.com